Christopher Blake Russell v. Laura P. Russell , 240 So. 3d 890 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2058
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CHRISTOPHER BLAKE RUSSELL,
Appellant,
v.
LAURA P. RUSSELL,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.
April 5, 2018
PER CURIAM.
Several years after the court entered a final judgment of
dissolution, Laura Russell petitioned for modifications. She sought
to alter the custody, decision-making authority, and child-support
arrangements the original judgment provided. After several
evidentiary hearings, the lower court granted the petition.
Christopher Russell, the former husband, now appeals.
Mr. Russell’s main argument is that the lower court erred in
granting the modification because there was no substantial change
in circumstances and there was insufficient evidence to find that
modification was in the child’s best interest. See § 61.13(3), Fla.
Stat. (2016) (“A determination of parental responsibility, a
parenting plan, or a time-sharing schedule may not be modified
without a showing of a substantial, material, and unanticipated
change in circumstances and a determination that the
modification is in the best interests of the child.”). However, having
reviewed the record and the testimony presented over the course
of multiple hearings, we find that the lower court did not err in
determining modification was warranted. See Fabre v. Levine, 618
So. 2d 317, 318 (Fla. 1st DCA 1993) (“As to the question of
substantial change in circumstances and the child’s best interests,
this court is not at liberty to disturb the trial court’s ruling on these
issues in the absence of a showing of legal error or an abuse of
discretion, which requires a lack of competent, substantial
evidence to sustain the trial court’s findings.”), disapproved on
other grounds by Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997).
Mr. Russell separately argues, though, that the court erred by
granting Ms. Russell unpled relief and increasing Mr. Russell’s
child support obligation without making sufficient findings. We
agree with him on these points.
In her petition for modification, Ms. Russell sought to remove
Mr. Russell’s ultimate decision-making authority over the child’s
extracurricular activities. The parties had previously agreed that
Ms. Russell would have decision-making authority concerning the
child’s health and academic needs, while Mr. Russell would have
authority regarding the child’s extracurricular activities and
daycare needs. In the order on appeal, the lower court awarded Ms.
Russell the final authority on extracurricular activities she
requested. But it also awarded Ms. Russell authority over daycare
decisions. Because Ms. Russell never requested such a
modification, and because the issue was not tried by consent, the
court abused its discretion and committed reversible error. See
Nabinger v. Nabinger, 82 So. 3d 1075, 1076 (Fla. 1st DCA 2011)
(“In modification proceedings, as in other civil matters, courts are
not authorized to award relief not requested in the pleadings.”);
Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (noting
that to grant unrequested relief is an abuse of discretion and
reversible error).
Regarding child support, the court increased Mr. Russell’s
obligation after finding a need for modification and an ability to
pay. However, the court made no findings regarding the parties’
incomes. We therefore must reverse. See Whittingham v.
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Whittingham, 67 So. 3d 239, 239 (Fla. 2d DCA 2010) (“[W]hen
determining child support a trial court is required to make findings
of fact regarding the incomes of the parties because such findings
are required in order to determine whether the support award
departs from the [child support] guidelines.”); Aguirre v. Aguirre,
985 So. 2d 1203, 1207 (Fla. 4th DCA 2008) (“A final judgment is
facially erroneous, requiring remand, where it does not make any
findings as to the net income of each party as a starting point for
calculating child support or explain how the calculation was
performed.”).
Accordingly, we reverse the portion of the final judgment
awarding Ms. Russell unpled relief and increasing Mr. Russell’s
child support obligation. We affirm in all other respects. On
remand, the trial court should recalculate the child support award
and make the necessary findings.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
JAY, WINSOR, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Dorothy F. Easley of Easley Appellate Practice PLLC, Miami, for
Appellant.
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellee.
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